SBJ/August 27-September 2, 2012/Opinion

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  • How media coverage, public opinion are shaping NHL talks

    Some believe that winning the PR battle is essential in collective bargaining and can be accomplished by communicating an effective, simple message and having that reflected in the media’s coverage of your position. Whichever side is successful in delivering its message gains public support, and that support, in turn, results in pressure to reach a deal. The media’s coverage of the issues and personalities in the negotiations plays a large part in shaping that message.

    In the current NHL talks, public opinion and media coverage are clearly on the side of the players. Some would say that’s not a surprise, especially when it comes to the media, but the media is not always player-friendly. In the NFL talks last year, there was a sense by many on the players’ side that pro-management media fueled anti-player sentiment. During the NBA talks, there was less advocacy of ownership and its position, but also a clear recognition that the NBA’s system was flawed and needed to be changed to assist ownership in operating more efficiently in smaller markets.

    I’m not seeing any of that in the NHL’s talks. Let’s take a look:

    THE OFFERS: When NHL owners offered their initial proposal to the union, the reaction across the hockey media focused on how aggressive it was. Look at the July 16 issue of SportsBusiness Daily. The New York Post’s Larry Brooks had the most details and stated it was “not a good-faith proposal.” The Columbus Dispatch’s Aaron Portzline wrote that the league’s requests were “extreme.” ESPN’s Scott Burnside wrote the league “might as well have slid this proposal into Santa’s sack as it represents an owners’ wish list of ways the players can help save the league’s teams from spending themselves into financial crises.” The headline of Jack Todd’s story on the talks in The (Montreal) Gazette was, “NHL’s Gary Bettman’s Proposal To Donald Fehr Amounts To War Against NHLPA.” The hockey media clearly saw this initial offer as hostile.

    When the union offered a proposal a month later, it was reported quite differently. Look at the Aug. 15 issue of SportsBusiness Daily. The Toronto Star’s Mark Zwolinski called the union’s proposal “imaginative.” The Canadian Press’ Chris Johnston wrote that the NHLPA “presented itself as a partner looking to help fix the league’s problems.” The Sporting News’ Jesse Spector wrote under the header, “Donald Fehr’s Union Counterproposal A Forward-Thinking Stroke Of Genius.”

    Days later, the league stated its objection to the union’s offer, and the New York Daily News’ Pat Leonard wrote that Commissioner Bettman “threw cold water on any optimism generated by the players’ alternative.” The Ottawa Sun’s Don Brennan wrote, while it “seemed like a decent plan,” Bettman “crumpled it up and threw it in the trash can.” The New York Post’s Mark Everson called the NHLPA’s proposal “progressive, inventive, far-reaching, owner-friendly, sport-growing.” And in Buffalo, Mike Harrington wrote Bettman “better realize the bully tactics won’t work.”

    Not hard to see the NHLPA’s efforts winning over the media and that was the message reaching the public. Ownership may have been working its media allies to assist on messaging, but it wasn’t pushing out its position, and it didn’t seem to be a point of emphasis for them.

    THE BETTMAN/FEHR FACTOR: The personalities of the leaders are a major factor in the media’s coverage. Bettman’s relationship with the hockey media has always been strained. The Canadian media is especially critical of him, and I’ve had plenty of conversations with league insiders over the years who believe the Canadian hockey media is over-emphasized and unfairly shape the coverage in the U.S. One only has to look at the photos of Bettman recently in the Canadian press’ stories on the CBA talks to get a sense of the relationship: He’s either smirking, scowling or shown in some other non-flattering look. On the flip side, there is a noticeable change in attitude toward NHLPA boss Fehr. Long vilified for his role in baseball losing a World Series and for seemingly fighting drug testing, he has — so far — found a more friendly media. He’s been accessible and casual with writers. It will be interesting to watch how long the positive feelings remain or if perceptions change once the talks get more serious and the union’s position becomes more risky.

    THE STRATEGIES: The union’s PR plan is to show that players want to play and are willing to play while negotiations take place. They haven’t fought the salary cap and have proposed forgoing revenue if the league addresses internal revenue sharing, which they deem to be the real issue. The hockey media seems to agree and believe that the owners won so handily in 2004-05 that for them to seek more relief now eschews any intent of partnership — or even good faith. In addition, the image of today’s players helps the union: They are portrayed as down-to-earth, not money-hungry. They were beaten up last time, and everyone knows it.

    Some have publicly questioned if Fehr is boxing in Bettman with such a PR strategy, but Bettman won’t be fazed by this approach. The players are set up to win the PR battle — the only way they lose it is if they splinter and veer off message. Public opinion and media columnists criticizing Bettman won’t determine the outcome of these negotiations. NHL owners shut down their sport for a full year and heard cries of catastrophe only to see their league post record revenue seven years later.

    Overall, coverage of the NHL labor issue has been relatively sparse among mainstream media, especially considering coverage of the NFL and NBA negotiations of last year. The battle for public opinion can hardly be described as that either — a battle, or noticed by the public. The league will try again to win big and not worry about press inches. Yes, they will begin feeding their media-friendly members with information, and at some point, the NHL will shift its focus to public opinion. The last lockout was effectively spun as necessary for the future and growth of the game. It worked, and Bettman acknowledged that fans were patient during the shutdown because they envisioned — and got — a stronger league at the end of the day. Many observers (including fans) are looking for the league’s rationale this time around. The question is: When will the league feel the need to publicly and aggressively promote its position? Because right now, league officials don’t appear concerned with winning over the public and explaining why they want what they say they need.

    Abraham D. Madkour can be reached at amadkour@sportsbusinessjournal.com.

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  • State laws address risk, pervasiveness of ‘e-personation’

    No one can deny the power or exponential growth of social media, especially in the sports world. These platforms are the new global, virtual sports bar. After every big play, Twitter feeds light up with comments from athletes, sports analysts and anyone else around the world who wants to chime in. That’s one of the cool things about this bar: Anyone can mingle with pro athletes and VIPs.

    But it’s dangerous too, because nobody checks ID. In fact, athletes, coaches, broadcasters and other sports talent can be easily impersonated without their consent, harming them and even the companies they endorse or that sponsor them. California Penal Code Section 528.5 is designed to help.

    Section 528.5 provides that “any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person” is guilty of a misdemeanor. In addition, anyone who is harmed by such impersonation can bring a civil action against the violator for compensatory damages, injunctive relief, attorneys’ fees and, if the conduct was particularly egregious, punitive damages.

    This law was enacted to combat “the dark side of the social networking revolution,” said California state Sen. Joe Simitian. The California Legislature took action after former St. Louis Cardinals manager Tony LaRussa was impersonated on Twitter, appearing to mock the deaths of two Cardinals players; and after a sports reporter, posing as two prominent college football players, sent obscene messages to underage girls. Before Section 528.5, there were laws against identity theft generally and harassment, but nothing that specifically prohibited unauthorized impersonation in social media for purposes of harming another. Section 528.5 recognizes the unlimited potential for abuse in this forum.

    The proliferation of social media has brought increased risk of fraud by those impersonating celebrities and athletes.
    Photo by: GETTY IMAGES

    California Penal Code Section 528.5

    “… any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense …”

    Social media platforms are filled with athlete and other celebrity impersonators. How many athletes’ Twitter handles start with “@thereal________ [fill in athlete’s name]?” That’s often because someone else has taken their names. Some impersonators have hundreds or thousands of followers, or “fans” who presumably believe they are following, or “liking,” the real athlete. And followers beget followers: The more the impersonator has, the more he or she will get because the larger the following, the more people will believe the impostor is real.

    This proliferation can enable the impostor to reach a huge number of unknowing followers with humiliating or damaging messages, purportedly from the real sports figure. The ways in which sports talent can be harmed in social media are limitless, and the degree of harm will vary from case to case. While one end of the spectrum may be messages that just make an athlete appear foolish, the other end could be conduct so offensive that the athlete’s reputation and business are affected. Regardless, Section 528.5 gives athletes and other talent a weapon to shut this conduct down before real (or more) damage is done.

    The law also protects the companies that sponsor the athlete. Any “person who suffers damage or loss by reason of a violation” may sue. “Person” includes not just natural persons, but companies. Therefore, if an impersonator of an athlete who endorses a national sandwich chain tweets to thousands of people that he found a bug in his sandwich, the sandwich chain can go to court.

    Although Section 528.5 is a California law, its reach may be broader than the state’s borders, providing a tool for impersonated victims nationally. Venue rules generally allow lawsuits to proceed where the victim resides or was harmed, so California residents and companies should be able to bring 528.5 claims against out-of-state perpetrators. Also, states including New York, Texas, Washington, Mississippi and Hawaii have enacted statutes punishing online impersonation, while the legislatures in Louisiana, Illinois and Rhode Island introduced similar bills within the past year. The trend reflects a growing recognition of the risks and prevalence of “e-personation.”

    Since Section 528.5 is relatively new, it has not been tested in court and impostors who are sued will raise issues about whether their impersonation was credible (a requirement under Section 528.5) and the degree to which the victim was harmed. The credibility requirement was built into the law so as not to offend First Amendment protections of parody and other free speech, and whether an impostor is violating the law or is protected by the Constitution will depend on the facts of each case. If it’s obvious that the impersonation was a parody, the impersonator will not be liable. Even if the impersonation was credible, proving “harm” in the social media context, another requirement under Section 528.5, may not be easy.

    Either way, Section 528.5 has value. Before posing as a prominent sports figure, impersonators now need to consider civil judgments, attorney fee awards, and even criminal liability and incarceration. With these potential consequences, simple cease and desist letters may convince the impostor to close his fake social media account even before the victim spends money on litigation.

    Thus, the virtual sports bar that is social media has a new bouncer. He won’t stop all embarrassing impersonations, but he’s got enough muscle that potential violators should think twice before messing with him.

    Jordan Grotzinger (grotzingerj@gtlaw.com) is a shareholder at Greenberg Traurig in Los Angeles, and Dana Hooper (hooperd@gtlaw.com) is an associate in the firm’s Phoenix office. They focus their practices on litigation and sports and entertainment matters.

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  • Portraits of courage: Following Arthur Ashe’s example

    Courage and sports often go hand in hand. Athletes are modern-day gladiators expected to perform with unfailing grace under enormous pressure in stadia, not unlike the coliseums of ancient times.
     
    Perhaps no sports icon in recent memory better exemplified those virtues than tennis champion and human rights activist Arthur Ashe. Ashe overcame significant racial barriers at a time in our nation’s history when prejudice still abounded in sport. Against great odds, he became a trailblazing sports hero on the court and a statesman, leader and role model off the court as he fought a disease that, at that time, had great social stigma attached to it. As great a champion as he was, it was what Ashe did after his tennis career ended that defined how we view him today. By the example of his life, and through the heroic way in which he faced his death, Arthur Ashe became a symbol for sports and courage that will long endure. His unique and remarkable journey calls to mind two contemporary sports heroes, each facing adversity beyond what can be found on an athletic field.

    ‘Rebirth’

    I recently attended the dedication of a statue in New Orleans. It is perhaps the first statue related to sports that commemorates a moment rather than a person.

    Steve Gleason with his family at the dedication of “Rebirth.”
    Photo by: MICHAEL C. HEBERT
    Called “Rebirth,” the statue depicts the blocked punt by New Orleans Saints’ special teams star Steve Gleason in the first game held in the Superdome after Hurricane Katrina. That play led to a Saints’ victory and marked the beginning of a remarkable renaissance for New Orleans.

    For a city desperate to catch its breath after one of the worst natural disasters in U.S. history, it was a moment that gave hope and joy to a football team and a city longing for a healthy dose of both.

    The hero in bronze in that statue is trying to catch his own breath these days as he battles, with uncommon serenity and resolve, one of the worst diseases that can afflict a human being: ALS, aka Lou Gehrig’s disease. What Gleason learned on a football field — that winning is the result of fulfilling your role on a team to the best of your ability — he is now applying to ALS. Realizing that there is no known cure for ALS, Gleason has set his sights, and his considerable life force, on pursuing cutting edge technology as a way to live with the disease as long and as productively as possible. Through his foundation, he is building an ALS Living Residence in New Orleans that will allow patients to live virtually independent lives through computer technology. The Giving Back Fund is assisting the Team Gleason Foundation in its efforts to build this world-class facility.

    He and wife Michel are the parents of Rivers, a beautiful 10-month-old boy who is the joy of their lives. Because Steve knows he might not be able to speak when Rivers is old enough to have a conversation with him, he is banking his voice through the use of technology in ways that will allow Rivers to someday ask his dad any question on his mind and hear his dad’s answer.

    It is said that life’s greatest possessions are those that when shared, multiply. The love and caring that Gleason offers to others suffering from this disease takes your breath away. Instead of focusing on his own health, Gleason’s foundation provides life-changing adventures for other ALS patients. He has taken ALS patients sky diving, river rafting, to Super Bowls and on trips around the world. Spending his time giving to others, and helping develop technologies to help others, feeds his soul in ways those of us who are able-bodied can learn volumes from. Gleason has always lived his life by his personal motto: No white flags. Just as New Orleans has arisen from the waters of Katrina, I wouldn’t bet against Steve Gleason. He is a beacon of hope for his city, his family, his teammates and for us all.

    The resolve of champions

    In July, Pat Summitt, the Tennessee Lady Vols hall of fame basketball coach, strode onto a stage in Los Angeles to accept the Arthur Ashe Award for Courage at the 2012 ESPY awards. Summitt, who is in the battle of her life against early-onset Alzheimer’s disease, is not new to awards or to courage. She has enough of both to last a lifetime and was recently awarded the Presidential Medal of Freedom, our nation’s highest civilian honor, by President Barack Obama.

    Pat Summitt accepts the Arthur Ashe Award for Courage at the ESPYs.
    Photo by: GETTY IMAGES
    Like Arthur Ashe, Summitt is a champion. And like him, she has been fighting the effects of her disease while carrying on with her life at the highest professional level until it was simply impossible to continue. Also like Ashe, she faces up to her disease with dignity and a resolve that only champions know.

    Summitt has always beaten the odds. The records she established over a storied 38-year Division I coaching career defy imagination; she is merely the winningest college basketball coach — men’s or women’s — period. Eight national titles, seven coach of the year awards, 1,098 victories, an .840 winning percentage. Records aside, the esteem in which she is held by her large family of former players is perhaps the greatest testament to the kind of human being she is. And if imitation is the greatest form of flattery, just look at the kind of women they have become. Chamique Holdsclaw, Tamika Catchings and Semeka Randall became the first trio from one team to be named Kodak All-Americans. Four-time All-American Candace Parker and Catchings recently brought home the Olympic gold medal for the U.S. women’s team.

    In sports, we measure success by wins and losses and by championships won. In life, we measure success by the number and quality of people we can call our friends. By both criteria, Summitt’s life has been a success beyond all measure. This latest battle is just another challenge for a hall of fame coach who knows how to win at the game of life.

    Pat Summitt and Steve Gleason are two of sports’ finest examples of the human spirit. Somewhere, Arthur Ashe is smiling as he appreciates the legacy he has left.

    Marc Pollick (mpollick@givingback.org) is president and founder of The Giving Back Fund, a national public charity that helps athletes, entertainers and others establish and maintain charitable foundations and programs.

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